Page:Federal Reporter, 1st Series, Volume 6.djvu/864

 852 • federal eepobtbr. �United States v. National Park Bank of New York. �{District Court, S. D. New York. January, 1881.) �1. MoNET Paid Undbr a Mutual Mistakb of Fact— Foegebt of Drawbb'8 Kamb — NœaLiGENCB. �Where the defendant collected from the plaintia the amount ol a draf t received by it froiti another bank for coilection, orediting the payment in its account with the latter, which draft was drawn by a paymaster for bounty money, to the order of one D., upon the assist- ant treasurer of the United States at New York, purporting to be ihdorsed by him, and was indorsed by the other bank, but not by the defendant, and it was claimed that the fact that D.'s name was ^ . forgery was not dlscovered by the plaintifE until 10 years afterwards; and not communicated to the defendant until- another year had elapsed,— '-' IH an action fo recov'er the money : �ii; HeldjthaX the case is clearly one of payment of money nnder a „ being no allegation or proof of any loss or damage to the defendant, "' ' or bf aiiy loss of remedy by the defendant agaihst the bSnk from •-•' ^hich the draft was receited, by rettsto- Of the delay iii disCovering of i;i.commiiBic»tii)^. information of the Inistake.; ';i'. . �That, mere negligepce, unattende4 with such loss or damage, can- �not ifnpair the equity of the party, payi'hg inoney iinder a mutual irii^.' �'• tkke'of fact, to recover it fHsiii the other party w4o feceiTed ft-^ith- �iJ-^^utgityiiag toy consideratioit therefor. . ,)!•!*'' �;;:•; The raie decjarcd in ./"/'ice.jV. JTeflsi, 3 Burr. 1364, relating to 'the �~, aicceptance or paymeat of a draft, the. drawer's signature being �■ "forged, and easea folldwing it, are lioV regifrded ae eiceptibns tb the �'; ' geheral ttile; �'.y; The cases of countetfeit moneyrest on a different principle, the theory being that delay must necessarily impair the remedies over of tiie party from whom the money was received. ■:In this case the defendant has- a' complete remedy against Ihe dther bank upon the plaintifE's recovery in this action. , It is immaterial what the plaintiff: may do with the money, or what is its duty to- wards i). �C. P. L. Butler, Ass't Dist. Att'y, for plaintiff. �Barlow e Olney, for defendant. �Choate, d. J. This is a suit brought to recover the sum of $100, paid under a mistake of fact. A jury trial has been waived. There is no dispute as to the facts. One Dunlap made application for bounty money; and in settlement of the claim a paymaster of the United States drew a draft on the ��� �
 * ,;< mutual mistake of fact, and the plaintifE is entitled to recover, there